Adolescent Gender Identity and the Sex Discrimination Act: The Case for Religious Exemptions, Patrick Parkinson
There is a lot of controversy about section 38(3) of the Sex Discrimination Act
1984 (Cth) (‘SDA’) which permits discrimination by faith-based schools
against students on the basis of their sexual orientation and gender identity.
This article explains the background to this provision, which in its present form
was the result of amendments in 2013. It also explains the problems that would
arise if the subsection were repealed without making other amendments to the
SDA.
Faith leaders have consistently made it clear that they do not want the right to
expel or discipline students on the basis of sexual orientation or gender identity
and so support the repeal of s 38(3). However, other amendments are needed
to protect the rights of faith-based schools. These are, in any event, necessary
to buttress the (very doubtful) constitutional validity of the 2013 amendments
insofar as they concern gender identity.
There is also a need for broader changes to the SDA to address the confusion
about how the law on gender identity applies to children and adolescents. It is
unclear when a child gains a legally protected gender identity; whether a
clinical diagnosis of gender dysphoria is needed; what respect needs to be given
to the views of parents, even with a Gillick-competent adolescent; and what
professional discretion can be exercised by school principals when they
consider that supporting the social transition of an adolescent is not in his or
her best interests. The SDA needs to be amended to make clear that it does not
require schools to support and affirm the ‘social transition’ of a young person
against the wishes of a parent or when the school considers in good faith that
this is not in the best interests of the young person. Difficult pastoral issues need
to be left to professional judgment, drawing upon the best advice available from
the young person’s treating medical and mental health practitioners.